United States v. Vincent Provines ( 2019 )

Case: 19-40052 Document: 00515239724 Page: 1 Date Filed: 12/17/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 19-40052
Fifth Circuit
FILED
Summary Calendar December 17, 2019
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff−Appellee,
v.
VINCENT GARRETT PROVINES,
Defendant−Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:17-CR-208-1
Before OWEN, Chief Judge, and SOUTHWICK and WILLETT, Circuit Judges.
PER CURIAM: *
Vincent Garrett Provines was convicted by a jury of cyberstalking in
violation of 18 U.S.C. § 2261A(2)(B) and aiding and abetting in violation of
18 U.S.C. § 2. He was sentenced to 33 months of imprisonment and a two-year
term of supervised release. Provines timely appealed.
In his first issue, Provines argues that there was insufficient evidence
adduced at trial to support his conviction. To prove cyberstalking, the
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 19-40052
Government had to show, in pertinent part, that Provines: (1) intended to
harass or intimidate his victims; (2) engaged in a course of conduct that caused,
attempted to cause, or would be reasonably expected to cause substantial
emotional distress to his victims; and (3) used any interactive computer service
or an electronic communication service to do so. 18 U.S.C. § 2261A(2)(B).
Provines does not dispute that interactive computer services and electronic
communication devices were used or that the communications received by the
victims here caused them substantial emotional distress. Instead, he argues
that it was his ex-wife who used his various internet accounts to harass and
intimidate the victims. Viewing the record in the light most favorable to the
verdict and drawing all reasonable inferences in support of the verdict, we
conclude that there was evidence that, on several occasions, Provines himself
contacted the victims and communicated with them in such a way that a
rational juror could have found beyond a reasonable doubt that he intended to
harass or intimidate them. See Jackson v. Virginia, 443 U.S. 307, 319 (1979);
United States v. Myers, 104 F.3d 76, 78 (5th Cir. 1997).
Next, Provines argues that he was denied his Sixth Amendment right to
an impartial jury. This claim arises from the seating of a juror despite her
indication that she could possibly develop feelings of sympathy or dislike that
could affect her decision in a cyberstalking case. However, the defense did not
pose any questions to the juror on that point despite the opportunity to do so,
and it did not object to the jury as seated. It is unclear whether we should
review this issue only to see whether there was actual bias, see United States
v. Wilson, 116 F.3d 1066, 1086-87 (5th Cir. 1997), vacated on other grounds by
United States v. Brown, 161 F.3d 256 (5th Cir. 1998) (en banc), or whether we
should review it for plain error, see United States v. Birdsell, 775 F.2d 645, 651-
52 (5th Cir. 1985). We need not decide the correct standard here, however,
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No. 19-40052
because Provines cannot prevail under either standard. See United States v.
Khanalizadeh, 493 F.3d 479, 483 (5th Cir. 2007).
AFFIRMED.
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